Is the roof demised, and is it my job (financial responsibility) to fix it?

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    #16
    His response:
    "Dear Dominic,

    I would advise the extract below mentions roof gutters and the water ways and doesn’t mention the roof on its own.
    ..."
    I'll look into how I go about escalating this. Thanks again everyone.

    Comment


      #17
      Originally posted by kinamod View Post
      I'll look into how I go about escalating this. Thanks again everyone.
      Do what Jon66 has said, and inform them that they would be advised to take legal advise on this matter.

      Personally, I wouldn't go to the expense of paying a solicitor to write to them, I would write to them myself pointing out the following:
      1. It is normal for leases to be written without punctuation, and it is clear from other clauses that this applies to your lease.
      2. The clause they are relying on only makes sense if it is read as referring to the roof itself, because roof-gutters and rainwater pipes are not part of the main structure.
      3. (This is perhaps the most important one) - As Lawcruncher has pointed out, if there is any potential ambiguity in a lease, it is construed against the person who granted it (or whoever has taken their place). This means that, if the matter went to a court or tribunal to decide, the decision would go against them, and the clause would be determined to mean:
      "The main structure, and in particular the roof, gutters and rainwater pipes"

      You could also add that, if at any point in the future there is internal damage caused to any property as a result of their failure to meet their responsibility to maintain the roof, the cost of any repairs may be claimed directly from the freeholder (and will not be recoverable via the service charges).

      Do you have the support of (at least) the other top floor leaseholders in this?

      Comment


        #18
        So...here is their final reply after all your input.
        What do you think?:



        Our Ref: 0000000
        Date: 25th August 2020

        Dear Mr Kinamod
        I refer to your email of the 28th July 2020 expressing your dissatisfaction with the stage 1 response received from {NAME REMOVED} and requesting the matter be escalated to stage 2 of our Complaints Handling Procedure. This escalation was acknowledged by me on the 30th July accordingly. I thank you for your patience while I have reviewed this matter.
        In essence your complaint is in relation to who is responsible for repairs and maintenance of the roof at the property.

        Having reviewed the lease I can see from the lease for flat 12 that the Flat is defined on page 2 as including;
        ' the roof of the said building so far as the same constitutes the roof of the Flat'
        I believe that this should mean that the Lessee has the roof demised to them (there are 4 top floor flats of the 12 units). The leases appear when looking at the wording carefully to demise the majority of the building, but reserve the maintenance of some parts to the Landlord.

        By virtue of clause 4 (i) the Lessee covenants to keep the demised premises (other than the parts comprised in clauses c) and e) of clause 5 .... in good and tenantable repair.
        Clause 5 sets out the Lessors obligations, and clause c) states that subject to the payment of service charge the Lesser will maintain, repair redecorate and renew;
        (i ) the main structure and in particular the roof guttering and rainwater pipes...
        I note that you have read this as roof, guttering and rainwater pipes and therefore that the Landlord would be responsible for the maintenance and repair of these. However, it could also be read as being roof guttering and rainwater pipes (i.e. roof gutters being separate to the roof and the roof gutters falling under the Landlord’s remit). {NAME REMOVED} has already advised that this is our Client’s view on the interpretation of the lease.

        We do accept that this is not clear cut, however,
        Due to the nature of how some leases are written, without the use of punctuation such as commas, this can result in them being somewhat unclear in certain parts and open to interpretation to some extent.

        Should the Landlord instruct a repair to this roof, under your understanding of the lease that he be responsible for the repair, these costs would need to be put through the service charge. As {NAME REMOVED} has advised, should the other residents at the property then dispute these costs, due to them reading the lease in
        the manner stated above (that our Client has understood it, as being the top floor flats responsibility to repair and maintain) they could reasonably argue that the top floor flats have the obligation to maintain, and the Landlord would not then be able to recover these costs.

        If you dispute this, I would recommend you obtain independent legal advice in this regard. In addition we will speak once again with our Client regarding this matter and your concerns regarding the interpretation of the lease.
        In conclusion, I cannot find that {NAME REMOVED} have acted unreasonably or failed within our remit under the terms of the Management Agreement.

        While I appreciate that you will be disappointed with this outcome, I do hope that my response has clarified the reasoning for this.
        I must advise that this represents the final position of the business, therefore if you remain dissatisfied with this response it is now your prerogative, if you wish, to contact the Ombudsman and ask them to conduct a case review of any service failings you feel there are attributable to {NAME REMOVED}. Please note that if you wish to pursue this course of action you will need to lodge your complaint with the Ombudsman within 12 months of this communication.

        Yours Sincerely,
        {NAME REMOVED}
        Customer Services and Compliance Manager
        Professional Services Division

        Comment


          #19
          I'm almost on the page that they tell me "They landlord may struggle to get his money back if he does a repair, that's why he's interpreting it the incorrect way"
          But tbh, that's not really my problem. That's no reason for me to accept responsibility for the roof right? Anyway, feedback greatly appreciated. I don't feel like I should have to prove it with a lawyer, when really it's just them telling me what they think. I don't think any of these people are actually qualified to argue legal matters.

          Comment


            #20
            When posting Do Not include names of companies or individuals (or hints).
            I also post as Mars_Mug when not moderating

            Comment


              #21
              If you wish I can draft a response. Say what tone you wish to adopt.

              Comment


                #22
                Presumably this should now go to the ombudsman and they will issue a decision? However I struggle a little bit whether the Managing Agents‘ hands aren‘t somewhat tied by the freeholder‘s position, and I guess you may need to take your claim directly to the freeholder rather than to the Managing Agent (although that will also depend on what role the Managing Agent has as per the lease).

                What you could do too is contact your conveyancing solicitors. If the roof is demised to you this is fairly unusual and should have been pointed out to you by the conveyancer. If they haven‘t done so then I think it might be worth contacting them with the Managing Agent‘s letter and asking them for their position on this and why they haven‘t pointed out this potential issue to you when you bought the flat.

                Comment


                  #23
                  What we have here is a question of interpretation of a lease. I do not think that that comes under the remit of any ombudsman.

                  In this case whether the roof is included in the demise is irrelevant. It is by no means unusual for a landlord to take on responsibilty for repairing some parts of the property demised.

                  This case is just about as clear as it can be. The landlord is made responsible for:

                  the main structure and in particular the roof guttering and rainwater pipes

                  The red sets out what the obligation is. The blue is confirmatory for the avoidance of doubt.

                  Any definition of "structure" in relation to a building must inlcude the parts which hold up and enclose the building. A roof encloses a building. We do not need the blue to tell us the roof is included. We can though, as another string to Kiamod's bow, consider it. It can either be read as:

                  and in particular the [roof guttering] and [rainwater pipes]

                  or

                  and in particular the roof, guttering and rainwater pipes

                  The second reading has to be preferred on the contra proferentem rule. Apart from that, the reference is clearly to rain gutters. Whilst there may be exceptions which have not come to my notice, all rain gutters are attached to a roof and accordingly when referring to them the word "roof" is redundant. Even if we take the first reading all it does is confirm that the guttering is included.

                  Comment


                    #24
                    I do not disagree with you in that the roof is the freeholder‘s responsibility to maintain. I think that‘s clear, and it is obvious that the freeholder here is trying to escape liability and the Managing Agent simply follows suit.

                    I‘m simply saying that since the Managing Agent is subject to an ombudsman process, that ought to be preferred as the next step now, when compared to going to court directly.

                    Particularly because the ombudsman‘s decision will be binding on the Managing Agent but not on the OP, and it will be a process that doesn‘t cost the OP anything.

                    I would also be very surprised if the ombudsman comes back saying that they are not in a position to interpret the lease. They will have to interpret contracts at every step of their activities, so interpreting a lease should be no different, particularly if it is as clear-cut as you say (with which I agree, to make the point once more).

                    Comment


                      #25
                      Originally posted by ChrisDennison View Post
                      ...it is obvious that the freeholder here is trying to escape liability and the Managing Agent simply follows suit.

                      I‘m simply saying that since the Managing Agent is subject to an ombudsman process, that ought to be preferred as the next step now, when compared to going to court directly.

                      Particularly because the ombudsman‘s decision will be binding on the Managing Agent but not on the OP, and it will be a process that doesn‘t cost the OP anything.
                      I don't see anything at all to be gained from trying to go through the managing agents ombudsman, not least because they should immediately inform the OP that this is a matter that is outside of their remit.

                      The managing agent is managing the block on behalf of the freeholder, they do not have the authority to do anything that the freeholder doesn't agree to.
                      All that the managing agents are required to do in a case like this would be advise the freeholder that their interpretation of the lease may no be correct, and to suggest that the freeholder seeks legal advice. They cannot do anything more than that.

                      In a situation where the freeholder is clearly giving instructions that are contrary to the lease, the managing agents should inform the freeholder of this - but they can do nothing else except resign as managing agents.

                      The ombudsman can therefore achieve nothing in this case.

                      Comment


                        #26
                        VERY interesting discussion, and it's helping me a LOT. MOST of this is all above my head.

                        I also was doubtful as to whether this was indeed the remit of the Ombudsman or not, or even their complaints procedure in the first place. However, I can see the logic in me escalating to the Ombudsman in the first place in order to be able to demonstrate that I have indeed exhausted all channels offered to me. Additionally, the managing agent, rather than holding their hands up and saying, "we're just doing what we're told", appear to be trying to help enforce what is known to be an incorrect interpretation.
                        Can the ombudsman pull them up on that? The ombudsman ALWAYS asks, what do you what out of this? And what I want (Freeholder and managing agent to accept responsibility for the roof and its maintenance/repair), the Managing Agent can provide half of...and advise the freeholder they do the same maybe?

                        It would be interesting to know who it was that has paid for any previous repairs/maintenance to the roof. The block is ~70 years old, so that must be somewhere? Any ideas as to how I could find out?

                        Lawcruncher - You offer to help me with a response, but I don't know who that would be to? The Managing Agents say that this is their last response, so should this letter you're assisting with be aimed at the freeholder, or the ombudsman?
                        With regards to the tone, there is nothing that NEEDS to be done now, but it is clear that the roof is soon to need preventative maintenance if not repair VERY soon, so I just want to be prepared for when either the roof falls in on my flat that I have grounds to say "well yes I take the blame", or "NO, this is you Mr Freeholder".
                        I'm totally happy for you to take whatever tone you have found to be most productive.

                        Thanks so much everyone, I'm feeling less alone than when this all started.

                        Comment


                          #27
                          I think the key is to first understand (and this is why I mentioned this before) what the role of the Managing Agent and of the freeholder is, as per the OP’s lease. I agree with
                          Macromia
                          that if the position of the Managing Agent is simply to undertake the management of the block on the express instructions of the freeholder, then the Managing Agent’s hands are tied and the OP needs to take this up with the freeholder. I actually expressly stated this in my previous post.

                          However, it is not uncommon that the role of the Managing Agent is expressly described in the lease and comes with its own rights and responsibilities, and these could include undertaking any necessary repairs. In which case it would be down to the Managing Agent to decide on the interpretation of the lease - and this would enable the ombudsman to review the decision.

                          But we don’t know until we know how the lease is structured.

                          One final point, the OP is correct when he states that it is always a good idea to try and exhaust any non-court remedies before going to court. So also on this basis there is a benefit in going to the ombudsman - specifically after the Managing Agent suggested it in their Final Response. If the ombudsman then states ‘I can’t decide this because this is a decision that the freeholder needs to take’ then that’s worth having in its own right.

                          Comment


                            #28
                            Originally posted by ChrisDennison View Post
                            One final point, the OP is correct when he states that it is always a good idea to try and exhaust any non-court remedies before going to court. So also on this basis there is a benefit in going to the ombudsman - specifically after the Managing Agent suggested it in their Final Response.
                            My reading of the posted 'final response' is that they are inviting the OP to go to the ombudsman if they aren't happy with the way that the managing agent has conducted themselves, not if they wish to challenge the decision on the basis that the interpretation of the lease is incorrect.

                            If the managing agents had refused to pass anything on to the freeholder, or had treated the OP unfairly in any other way, that would potentially be a matter for the ombudsman to assess.
                            Who is responsible for the repairs to the roof is a legal question though and, although I am certain that the position taken by the freeholder and managing agent is incorrect, as I have already said, the most that the managing agent can do is advise the freeholder that they should seek legal clarification.

                            Unfortunately, the freeholder won't want to pay for legal advice, and won't want to pay the costs of taking the matter to a tribunal themselves to get the dispute cleared up.
                            If they can't be persuaded that they are wrong, it is the leaseholders on the top floor who will end up having to pay tribunal costs.
                            Would other top floor leaseholders be prepared to share the costs?

                            Comment


                              #29
                              kinamod

                              Write back to the agents as follows:

                              Thank you for your letter of...

                              As suggested, I have consulted a landlord and tenant specialist lawyer. He advises that there can be no doubt that the lease imposes an obligation on the landlord to repair the roof. He says:

                              This case is just about as clear as it can be. The landlord is made responsible for:

                              the main structure and in particular the roof guttering and rainwater pipes

                              The first three words set out what the obligation is; the remainder is confirmatory for the avoidance of doubt.

                              Any definition of "structure" in relation to a building must in
                              clude the parts which hold up and enclose the building. A roof encloses a building. We do not need the confirmatory words to tell us the roof is included.


                              Whilst not necessary, we can though consider the confirmatory words. They can either be read as either:

                              and in particular the [roof guttering] and [rainwater pipes]

                              or

                              and in particular the roof, guttering and rainwater pipes

                              The second reading has to be preferred on the contra proferentem rule, that is the rule which says that a document must be interpreted against the party who proposed it. Apart from that, the reference is clearly to rain gutters. All rain gutters are attached to a roof and accordingly when referring to them the word "roof" is redundant. Even if we take the first reading all it does is confirm that the guttering is included. “


                              In view of the above, and without indicating any hostile intent, I must put you and the landlord on notice that should the question ever come to a court or other tribunal, my lawyer will assert that any defence which argues that the lease does not make the landlord responsible for the roof is wholly without merit and ask for costs to be awarded on an indemnity basis."

                              *

                              You can if you wish leave out the last paragraph.


                              Comment


                                #30
                                Whilst not necessary, we can though consider the confirmatory words. They can either be read as either:
                                Just spotted one too many "eithers" there; delete one of them.

                                Comment

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